The opinion of the court was delivered by: Robert L. Wilkins United States District Judge
Plaintiffs Finca Santa Elena, Inc. ("Finca"), the Roman-Mas Foundation, and Angel Roman-Mas (collectively "Plaintiffs") have sued Defendants U.S. Army Corps of Engineers and its Chief, Lt. Gen. Robert L. Van Antwerp ("Corps"), in connection with the Corps' Rio de la Plata stream stabilization/flood control project ('the Project"). Although the Project covers a seven-mile portion of the Rio de la Plata River, only Phase 1A-the first phase of the project covering the two most downstream miles of the river-has commenced. In their ten-count Complaint, Plaintiffs challenge the entire Project, claiming violations of the Clean Water Act ("CWA"), the National Environmental Policy Act ("NEPA"), and the National Historic Preservation Act ("NHPA").
Defendants' partial motion to dismiss is based on two theories: 1) Counts VIII and X should be dismissed because Plaintiff Finca lacks standing to challenge Phase 1A; and 2) Plaintiffs' claims should be dismissed to the extent they challenge any phase of the Project beyond Phase 1A (referred to in this Opinion as the "Upstream Project Components"). At a status conference with the Court on April 25, 2012, the parties agreed that it was not appropriate at this time for the Court to rule on whether Plaintiffs have standing with respect to Counts VIII and X. Accordingly, Defendants' Motion as to those two counts has been denied without prejudice. Thus, the only issue before the Court is whether Plaintiffs' claims should be dismissed to the extent those claims challenge the Upstream Project Components. For the following reasons, Defendants' Partial Motion to Dismiss is GRANTED.
The Rio de la Plata (the "River") is located approximately 11 miles west of San Juan, Puerto Rico. See First Amended Complaint ("FAC") ¶ 1. The Corps has undertaken the Project to address flooding in residential areas located within the River's floodplain. (FAC ¶ 1). The Project includes seven miles of channel modifications to the River, 7.6 miles of levee construction, and the replacement of three bridges. (Id.). Although it was originally proposed as a single-phase project, the Project is now divided into four phases and five construction contracts. (FAC ¶ 63). Currently, only Phase 1A has received funding and has been scheduled for construction. (FAC ¶¶ 2-3).
The "study, design and approval" of the Project has been modified over
decades, during which, according to Plaintiffs, there have been
"numerous changes" in the Project's scope. (FAC ¶ 5). The Court will
not recount the entire complex factual history of the Project, but
will note some significant events. Between 1982 and 1988, Congress
appropriated funds for a detailed investigation into the Project's
scope and potential impacts. (FAC ¶ 68). The Corps issued a Draft
Environmental Impact Statement ("DEIS"), which was followed by a Final
Environmental Impact Statement ("FEIS") for the Project in September
of 1988. (FAC ¶¶ 69-70). The Corps subsequently issued a Record of
Decision ("ROD"), finding that the chosen plan was "economically
justified and in the public interest" and thereby authorizing the
taking of 1,456 acres of property, including property owned by Finca.*fn1
(FAC ¶¶ 83-84). In 1992, the Corps prepared a Limited
Reevaluation Report ("1992 LRR") to update environmental and economic
impacts. (FAC ¶ 87). Following authorization from Congress in 1990,
the Corps updated the 1988 EIS by conducting an Environmental
Assessment ("1993 EA"), and ultimately issued a Finding of No
Significant Impact in 1993 ("1993 FONSI"). (FAC ¶¶ 85, 95; Griffith
Decl. ¶¶ 13-15).
In 2004, the Corps proposed and approved additional changes to the Project. (FAC ¶ 99). In connection with these changes, the Corps issued a Supplemental Environment Assessment ("2004 SEA"), followed by another FONSI ("2005 FONSI") in 2005. (FAC ¶¶ 101, 108; Scarborough Decl. ¶ 13). In 2008, the Department of Natural and Environmental Resources of Puerto Rico took control of the Project and applied for a Section 404 Clean Water Act permit, which it appears, was approved only as it applied to Phase 1A. (FAC ¶¶ 120-21; Castillo Decl. ¶ 5). The Corps prepared a Supplement to the 2005 FONSI (the "2008 Supplement"), which stated that the Project would be undertaken in four phases. (FAC ¶¶ 136, 142). The Corps issued another FONSI as part of the 2008 Supplement ("2008 FONSI") and the Corps issued a permit authorizing the Puerto Rico DNER to construct the Project. (FAC ¶ 146).
It was not until 2009, when Congress passed the American Recovery and Reinvestment Act of 2009 ("ARRA"), that funding became available for any portion of the Project. (FAC ¶ 148). Only Phase 1A was selected for and approved to receive ARRA funding. (Scarborough Decl. ¶ 15). In October 2009, the Corps resumed oversight and construction responsibility of the Project from the Puerto Rican government. (FAC ¶ 149). In 2010, the Corps awarded a construction contract for Phase 1A, and construction is scheduled to be completed by October 2012. (FAC ¶ 65; Scarborough Decl. ¶ 17).
Defendants contend through a number of uncontroverted affidavits that several steps must occur before construction on any of the Upstream Project Components can proceed. Defendants contend that there is currently no funding for the Project other than Phase 1A and that separate Congressional appropriations would need to be made. (Scarborough Decl. ¶ 18). Moreover, there is no guarantee that funds will ever be appropriated for the Upstream Project Components. (Tolle Decl. ¶ 7; Ornella Decl. ¶ 10; Griffith Decl. ¶ 16).
Further administrative and environmental review would also be needed. Based on administration policy, the Corps would be required to update the project evaluation. (Griffith Decl. ¶ 16). According to the Corps, this will involve preparing a Limited Reevaluation Report ("LRR"), which would "assess the current economic viability of the project, update environmental compliance, and validate (or change) the initial investment recommendation." (Id.). Although budget requests have been submitted for the preparation of an LRR, those requests have not been acted upon. (Scarborough Decl. ¶ 19). Until a LRR has been prepared, the future portions of the Project cannot compete for funds. (Id.).
Because the design work for the Upstream Project Components has not been completed, even Phase 1B is not ready for construction. (Scarborough Decl. ¶ 15). Further design work would need to be completed before the Upstream Project Components are implemented. (McCullough Decl. ¶ 10). Further hydrologic modeling would also need to be conducted. (Nelson Decl. ¶ 5). Additional NHPA 106 consultation may also be required and, pursuant to the District Office's Project Management Business Process, the solicitation and contracting process would need to be initiated and concluded. (McCullough Decl. ¶ 10; Tolle Decl. ¶¶ 5, 7).
Defendants argue that the only portion of the Project that has actually been "funded, finally designed and fully approved" is Phase 1A. (Dkt. No. 18 at 8). Defendants argue that any work upstream of Phase 1A is "a highly uncertain prospect" and whether any of the Upstream Project Components will ever receive funding is "a matter of speculation." (Id. at 8, 13). Moreover, the Upstream Project Components will require "funding, design work, and additional environmental and archeological review," before any may proceed. (Dkt. No. 18 at 23). Because the likelihood of the Upstream Project Components going forward is ...